Citation NR: 9736760
Decision Date: 10/31/97 Archive Date: 11/05/97
DOCKET NO. 96-20 926 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUE
Entitlement to an increased evaluation for post-traumatic
stress disorder (PTSD), currently rated as 30 percent
disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
D. Pickard, Associate Counsel
INTRODUCTION
The veteran served on active duty from January 1942 to
January 1946.
This appeal arises before the Board of Veterans’ Appeals
(Board) of the Department of Veterans Affairs (VA) from a
rating decision of May 1993 from the Atlanta, Georgia,
Regional Office (RO). The sole issue on appeal concerns
entitlement for an increased evaluation for PTSD.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends, in essence, that his service-connected
PTSD is more severe in nature than currently evaluated.
Consequently, he argues that he is entitled to an increased
disability rating for this disorder.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against the veteran’s claim and it is therefore
denied.
FINDINGS OF FACT
1. The RO has obtained all relevant evidence necessary for
an equitable disposition of the veteran's appeal.
2. The most recent VA psychiatric evaluation of record
reflects that the veteran was given a Global Assessment of
Functioning (GAF) score of 70.
3. The veteran’s PTSD does not produce greater than
definite industrial impairment or occupational and social
impairment with reduced reliability and productivity due to
symptoms such as flattened affect; circumstantial,
circumlocutory, or stereotyped speech; panic attacks
occurring more than once a week; difficulty in understanding
complex commands; impairment of short- and long-term memory
(e.g., retention of only highly learned material or
forgetting to complete tasks); impaired judgment; impaired
abstract thinking; disturbances of motivation and mood; and
difficulty in establishing and maintaining effective work and
social relationships.
CONCLUSION OF LAW
The criteria for an increased evaluation for the veteran’s
PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West
1991); 38 C.F.R. Part 4, including §§ 4.7, 4.132 and
Diagnostic Code 9411 (1996 as amended).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, it is necessary to determine if the veteran has
submitted a well-grounded claim within the meaning of 38
U.S.C.A. § 5107(a) (West 1991), and if so, whether the VA has
properly assisted him in the development of his claim. A
"well-grounded" claim is one which is plausible. A review of
the record indicates that the veteran's claim is plausible
and that all relevant facts have been properly developed.
Disability evaluations are determined by comparing the
veteran's current symptomatology with the criteria set forth
in the Schedule For Rating Disabilities. 38 U.S.C.A. § 1155
(West 1991); 38 C.F.R. Part 4 (1996). On and before November
6, 1996, the rating schedule directed that a 30 percent
disability evaluation was warranted for PTSD when there was
definite impairment in the veteran's ability to establish or
maintain effective and wholesome relationships with people
and psychoneurotic symptoms resulting in such reductions in
initiative, flexibility, efficiency, and reliability levels
as to produce definite social and industrial impairment. A
50 percent evaluation required that the veteran's ability to
establish or maintain effective or favorable relationships
with people be considerably impaired and that his
reliability, flexibility, and efficiency levels be so reduced
by reason of his psychoneurotic symptoms as to result in
considerable industrial impairment. A 70 percent evaluation
required that the veteran's ability to establish and maintain
effective or favorable relationships with people be severely
impaired and his psychoneurotic symptoms be of such severity
and persistence that there is severe impairment in the
ability to obtain or retain employment. 38 C.F.R. Part 4,
§ 4.132, Diagnostic Code 9411 (1996).
On November 7, 1996, the Secretary of VA amended the portions
of the Schedule For Rating Disabilities applicable to
psychiatric disabilities including PTSD. Under the amended
rating schedule, a 30 percent disability evaluation is
warranted for PTSD which is productive of occupational and
social impairment with an occasional decrease in work
efficiency and intermittent periods of inability to perform
occupational tasks (although the individual is generally
functioning satisfactorily with routine behavior and normal
self-care and conversation) due to symptoms such as depressed
mood, anxiety, suspiciousness, panic attacks (weekly or less
often), chronic sleep impairment, and mild memory loss (such
as forgetting names, directions, and recent events).
A 50 percent evaluation requires occupational and social
impairment with reduced reliability and productivity due to
symptoms such as flattened affect; circumstantial,
circumlocutory, or stereotyped speech; panic attacks
occurring more than once a week; difficulty in understanding
complex commands; impairment of short- and long-term memory
(e.g., retention of only highly learned material or
forgetting to complete tasks); impaired judgment; impaired
abstract thinking; disturbances of motivation and mood; and
difficulty in establishing and maintaining effective work and
social relationships.
A 70 percent evaluation requires occupational and social
impairment with deficiencies in most areas such as work,
school, family relations, judgment, thinking, or mood due to
symptoms such as suicidal ideation; obsessional rituals which
interfere with routine activities; intermittently illogical,
obscure, or irrelevant speech; near-continuous panic or
depression affecting the ability to function independently,
appropriately and effectively; impaired impulse control (such
as unprovoked irritability with periods of violence); spatial
disorientation; neglect of personal appearance and hygiene;
difficulty in adapting to stressful circumstances (including
work or a work-like setting); and an inability to establish
and maintain effective relationships. 38 C.F.R. § 4.132,
Diagnostic Code 9411 (1996 as amended).
The Court had clarified that “where the law or regulation
changes after a claim has been filed or reopened but before
the administrative or judicial appeal process has been
concluded, the version most favorable to appellant should ...
apply unless Congress provided otherwise or permitted the
Secretary ... to do otherwise and the Secretary did so.”
Cohen v. Brown, 10 Vet. App. 128, 139 (1997) citing Fugere v.
Derwinski, 1 Vet. App. 103, 109 (1990). Where there is a
question as to which of two disability evaluations shall be
applied, the higher evaluation will be assigned if the
disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7 (1996).
At an April 1997 VA examination, the veteran complained of
trouble sleeping, nightmares, intrusive memories, and that he
“feels like a stranger when dealing with.... other people.”
The veteran is a widower after a reported 40 years of
marriage, and at the time of the examination reported that he
gets along fairly well with his mother. He denied any recent
homicidal or suicidal thoughts. The report of the
examination states that the veteran’s thoughts are goal
directed, that there is no evidence of a thought disorder,
and that his concentration, insight and judgment are
adequate. The examiner also stated that the veteran’s
displayed some “incongruities in discussing his post-
traumatic stress problems (sic) specifically the way that he
cried with no tears but got a bit melodramatic with crying
noises.” The veteran’s global assessment of function (GAF)
was 70.
The Board has reviewed the probative evidence of record
including the veteran’s statements on appeal. The veteran’s
PTSD symptomatology has been shown to be manifested by
nightmares, isolation, depression, anxiety, and irritability.
The report of the most recent VA psychiatric evaluation of
record advances a GAF score of 70. The Court has clarified
that:
GAF is a scale reflecting the
"psychological, social, and occupational
functioning on a hypothetical continuum
of mental health-illness." Diagnostic
and Statistical Manual of Mental
Disorders 32 (4th ed. 1994) [hereinafter
DSM-IV]. A 70 rating indicates “some
mild symptoms (e.g., depressed mood and
mild insomnia) OR some difficulty in
social, occupational, or school
functioning (e.g., occasional truancy, or
theft within the household), but
generally functioning pretty well, has
some meaningful interpersonal
relationships."
The veteran is competent to allege that he is worse and his
statements tend to establish a well grounded claim. However,
when evaluating the evidence, the Board attaches far more
probative weight to the observations and opinions of the
medical professional skilled in the evaluation of psychiatric
disability. The Board finds that the veteran’s current PTSD
disability picture most closely approximates the criteria for
a 30 percent evaluation under both versions of 38 C.F.R.
§ 4.132, Diagnostic Code 9411.
The Board considers the GAF rating from the veteran’s last
mental health examination to have high probative value. A
score of 70, as stated above, demonstrates that the veteran
does not meet the level of a definite impairment in the
ability to establish or maintain effective and wholesome
relationships with people, as required by the previous
diagnostic code. The veteran has at least one significant
family relationship, specifically with his mother, and the
record reflects several contacts with his son and daughter-
in-law. Furthermore, he is rated according to the GAF as
“generally functioning pretty well, has some meaningful
interpersonal relationships."
Nor does the medical evidence of record display that the
veteran suffers from occupational and social impairment with
reduced reliability and productivity due to symptoms such as
flattened affect; circumstantial, circumlocutory, or
stereotyped speech; panic attacks occurring more than once a
week; difficulty in understanding complex commands;
impairment of short- and long-term memory (e.g., retention of
only highly learned material or forgetting to complete
tasks); impaired judgment; impaired abstract thinking;
disturbances of motivation and mood; and difficulty in
establishing and maintaining effective work and social
relationships, so as to merit an increased evaluation under
the amended diagnostic code. Although the record
demonstrates that the veteran does have symptoms which
include depression and anxiety, the report of his last mental
health examination displays that he does not suffer from a
thought disorder, hallucinations, or suicidal or homicidal
ideation, and he has an intact memory. The Board concludes
that the preponderance of the evidence is against the
veteran’s claim for an increased evaluation for his service-
connected PTSD.
The Board also finds that an extraschedular evaluation is not
warranted, since the evidence does not show that the
disability presents such an unusual or exceptional disability
picture with marked interference with employment or frequent
periods of hospitalization as to render the regular standards
impractical. 38 C.F.R. § 3.321(b)(1) (1996).
ORDER
The veteran’s claim for an increased evaluation for his
service-connected PTSD is denied.
MARK W. GREENSTREET
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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